United States v. Martin ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41428
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEWIS MARTIN,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. C-98-CR-245-2
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September 2, 1999
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
David Lewis Martin appeals his conviction, arguing that his
plea was not knowing and voluntary because (1) the district court
mistakenly overstated the minimum sentence at the Rule 11
hearing, (2) the district court mistakenly stated that it could
not grant a U.S.S.G. § 5K1.1, p.s., downward departure from
Martin’s mandatory consecutive sentence for using a firearm in
connection with a drug trafficking offense, and (3) the plea was
induced by a “promise” of a 73-month sentence. Martin also
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-41428
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argues that he was denied effective assistance of counsel because
counsel failed to raise these issues at sentencing.
Martin has not alleged that he would have pleaded
differently if he had had the full and correct information about
the sentence. See United States v. Bond, 87 F.3d 695, 701 (5th
Cir. 1996). The full and correct information about the minimum
sentence was available to Martin in the plea agreement.
Furthermore, logic dictates that if Martin were willing to plead
guilty thinking that his minimum sentence would be 10 years he
would also be willing to plead guilty if he thought that the
minimum sentence were 5 years. Cf. United States v. Williams,
120 F.3d 575, 578 (5th Cir. 1997)(maximum sentences), United
States v. Pierce, 5 F.3d 791, 793 (5th Cir. 1993)(maximum
sentences).
The plea agreement was explicit that the decision whether to
move for a downward departure was in the discretion of the
Government and that the decision regarding the extent of any
departure was in the discretion of the court. The court
specifically admonished Martin that he might never receive any
benefit from cooperating with the Government. In light of these
statements, any error made by the district court in stating how
the downward departure would be calculated was harmless. The
plea agreement and Rule 11 colloquy both demonstrate that no
“promise” of a 73-month sentence was made to Martin to induce his
guilty plea.
Because any errors made by the court in conducting the Rule
11 colloquy were harmless, Martin has not shown that he suffered
No. 98-41428
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any prejudice from counsel’s error in failing to object. See
Strickland v. Washington, 466 U.S. 668, 697 (1984).
AFFIRMED.